On November 5, 2014, the Illinois Appellate Court, Fifth District, affirmed summary judgment on an Illinois common law retaliatory discharge claim. Flick v. Southern Illinois Healthcare, 2014 IL App (5th) 130319. In order to establish a common law claim for retaliatory discharge under Illinois law, a plaintiff must demonstrate that: (1) she was discharged; (2) the discharge was in retaliation for her protected activities; and (3) the discharge violates a clearly mandated public policy of Illinois. Claims of retaliatory discharge have been recognized where an employee has been discharged in retaliation for filing a workers’ compensation claim, reporting illegal or improper conduct, or refusing to work in conditions that are hazardous or violate federal safety standards. Reporting illegal conduct is protected regardless of whether the conduct violates state or federal law, or whether the employee reported it to the employer or a government agency. The employment “at will” doctrine is not a defense to a retaliatory discharge claim. Unlike federal retaliation law, only an actual termination of employment is actionable under Illinois common law.
A plaintiff must establish a causal connection between the protected activity and the discharge. The timing between the two is crucial. Close temporal proximity may raise an inference of retaliation, although more evidence is usually required, whereas a extended gap in time will generally defeat an inference of retaliation, unless there is other evidence. Flick raises an interesting timing scenario. The employer presented Flick with a severance agreement shortly after her protected activity. She refused to sign it, and the employer did not terminate her until two years later. During the two-year gap, the employer gave her a salary freeze and negative performance evaluations. Before her protected activity, the employer had given her annual salary increases and favorable performance evaluations. The employer also circulated a memo questioning her honesty, and blamed her for a project for which she had little responsibility. Flick argued that the employer’s first attempt to sever her employment, followed by a pattern of adverse treatment leading up to her discharge, evidenced a retaliatory motive sufficient to preclude summary judgment. However, based on the two-year gap, the court found that she had failed to present any evidence of a causal connection between her protected activity and discharge. The Appellate Court agreed.